Mary J. Westerfield et al., Appellants, v. Thomas Rogers, Individually, and as Trustee under the Will of Jason Rogers, Deceased, et al., Respondents, Impleaded with Others

Mary J. Westerfield et al., Appellants, v. Thomas Rogers, Individually, and as Trustee under the Will of Jason Rogers, Deceased, et al., Respondents, Impleaded with Others. (Submitted April 27, 1903; decided June 5, 1903.) Motion for reargument. (See 174 N. Y. 230.) [MAJORITY] Motion denied and the remittitur recalled and amended so as to provide that “ the judgment entered upon the report of the referee should be modified by deducting from the amount found owing by Thomas Rogers the amount of §131,778.53, which had been appropriated by Cauldwell prior to the 8th of December, 1895, with the interest allowed thereon; and that the judgment herein directing a sale of the property turned over to the trustees by Cauldwell should be modified by adding thereto that out of the proceeds of such property the amount paid out by the new trustee for the preservation of the property after the removal of Cauldwell and Rogers, as trustees, with the consent of the plaintiffs, be first paid ; and that the remaining proceeds of such property, if aüy, be applied upon the moneys appropriated by Cauldwell prior to the 8th day of December, 1895; and if any remains it be applied upon the joint indebtedness of the two trustees; and that the judgment as so modified be affirmed, with costs to these plaintiffs.” In case the parties are unable to agree, the form of the judgment to be settled by IIaight, J.